Crispin Hull

Acting Prime Minister John Anderson attacked the High Court this week over its decision in Cattanach v Melchoir to award parents the cost of bringing up a child after a failed sterilization.

Anderson used the “child-is-a-joy” argument to say that damages should not be awarded.

Anderson’s attack and similar attacks on the court for this decision are inconsistent with his (and his political party’s) earlier attacks on the court over native title.

The National Party attacked the court over the Mabo and Wik decisions. They denounced the court’s judicial activism and adventurism.

Remember the then National leader, Tim Fischer, calling for the appointment of a “capital C Conservative” (whatever that means) to the bench – someone who would apply the law, not make the law?

In theory, he got his “capital C Conservative” in Ian Callinan. In practice, though, he got a judge. And in this week’s case the judgment of Justice Callinan was decisive in the 4-3 decision to award the parents the damages. He applied the law in a “capital C Conservative” way and refused to use “policy” grounds or engage in judicial adventurism to deny the claim. To him it was a standard tort case.

The surgeon’s negligence had caused foreseeable loss. Kerry Anne Melchoir and her husband had specifically gone to him so she could avoid pregnancy. He had a duty of care to her. He breached that duty. The loss was not only foreseeable, but obvious. It could be calculated.
Continue reading “2003_07_july_forum for saturday july 19 medical negligence.d”

Thank you Cedric Bryant. Thank you ActewAGL. No thank you Ted Quinlan.

I am pondering whether to install a rainwater tank. ActewAGL gets kudos for its splendid website. You can log on to your account and see how much water you have used every quarter for the past 10 years. I use about 400 kilolitres (400,000 litres) a year. The consumption for the summer quarters indicates that half my consumption goes on the garden. That is fairly typical in the ACT.

In the 1999-00 financial year, I installed an underground sprinkler system and was talking to Cedric Bryant about it. He told me I was grossly over-watering. That year’s consumption was 750 kilolitres – 350 kilolitres of which was wasted. Cedric has saved me a lot of money. You need only water one a week, particularly for a native garden.

So in the face of Stage Three water restrictions, is a rainwater tank worthwhile?

ActewAGL charges 43 cents a kilolitre for the first 175 kilolitres and $1.05 per kilolitre after that.

So I am paying roughly $100 a year to water the garden with 200 kilolitres of water a year – that is for a four-hour soaking a week.

So we could collect the water from the roof into a tank and via a pump through the in-ground sprinkler system on to the garden and save $100 a year?
Continue reading “2003_07_july_forum for saturday july 10 water”

Mark Twain said, “Buy land young man they are not making any more of it.” Some years later he also filed for bankruptcy.

That happens with booms heading to busts. One sign is the emergence of crazy financing schemes. Remember the inter-generational loans during the Japanese property boom of late 1980s – just before it crashed.

So those who have missed out on the most recent property boom should be wary of the new scheme publicised this week by Wizard, Australia’s largest non-bank lender — not just because it might be harbinger of a crash, but because it might not be a good investment.

There may not be a crash. Normally, people pay a deposit and borrow around 80 per cent of value. The lending institution holds a mortgage (from the old French meaning dead hand). You cannot sell without paying the money back.

It is safe for the bank. It can always put a for-sale sign up and sell for 80 per cent of value within a few days.

But with rising prices, people cannot afford the deposit or repayments. So Wizard comes to the rescue. People need only 70 per cent of the usually deposit and 70 per cent of the repayments. In return, Wizard takes 30 per cent of the ownership (or equity). When the house is sold, however, Wizard takes 60 per cent of the capital gain. Note, not 30 per cent which would match their equity share.

Continue reading “2003_07_july_forum for saturday home loans 5 july”

This week the Chief Judge in Equity in New South Wales, Justice Peter Young, warned lawyers about running up huge costs in Family Provision cases.

These are cases where family members contest a will. Each state and territory has its own laws, but they follow a similar pattern. A family member who has not been adequately provided for in the will can apply for a court order to get extra money out of the estate.

It is happening more frequently these days. The increase has been caused by higher divorce rates; more de-facto partners; and more ex-wives with children from the first marriage competing against new wives with children of the second and third marriages.

In the past, it was more the practice to take the costs out the will than it is now. This just encouraged people to challenge the will and encouraged lawyers to egg them on. These days the costs come out of the estate less frequently. So people challenging a will without good cause and people resisting a challenger who has a good cause better watch out.

Often costs come out of the estate when there are arguments over a badly expressed will, but in a recent ACT case, Chief Justice Jeffrey Miles said that in family-provision cases, the loser should ordinarily pay the winner’s basic legal costs, which cost most but not all the costs. Further, if someone refuses an offer greater than what the court ultimately awards, the costs are awarded against them at a higher rate than the basic rate.

Justice Young was probably whistling in the wind in warning against costs. The very day his article in the NSW Law Society Journal became public, a judgment in yet another family-provision case came down with horrific legal costs.
Continue reading “2003_07_july_forum for saturday estates wills etc”

As time goes on fewer people are determined to rebuild and live where they did before the fires.

The decline coincides with what psychologists say happens after a disaster. Initially there is a great community bond, then reality sets in. Cleavages occur in the community. Also, under insurance means a third of those not rebuilding say they cannot afford to rebuild as they initially had hoped. Another third just want closure. And the remaining third found the rebuilding process too complex.

Research by Market Attitude Research commissioned by the Recovery Task Force shows that in the month after the fire two-thirds of those affected intended to rebuild. By five months after the fire that had shrunk to a half.

The aim of the research was to help the taskforce meet housing needs.

After seven months fewer than 75 development applications have been approved. Of these about 60 have had building applications approved. Of these only two or three have had final certificates of completion issued so people can occupy their new homes.

The survey is fairly conclusive. Researchers interviewed people from 403 of the 500 affected families. If anything it might under-represent those who decide not to rebuild – because they would be harder to contact or refuse to be interviewed because they wanted the fires out of their lives.
Continue reading “2003_07_july_bushfires_who is moving who is staying”

So why all the fuss? If someone on the northside lost their house in an accidental fire, they would not get the level of support that the Duffy, Chapman and other residents who lost their houses. No government hand-outs for them. No special bushfire appeal or one-stop shop to fix all for them.

Besides, all but six of the destroyed houses and all but four of the damaged houses were insured. Most of the people lived in an affluent suburb with high incomes by Australian standards, all why the need for all this help months after the event? Isn’t it a bit overdone?

I put these questions to the manager of the ACT Bushfire Recovery Centre, Di Butcher.

“Yes, the loss is high for an individual who loses their house in a one-off fire. But if you look at a city which has got 500 people in the same situation plus all of the other people whose homes are damages you are looking at a city which could have huge problems for years to come. Unless we get those people up and well and moving you can imagine what would happen to Canberra. Four thousand people stayed at the evacuation centres – it is a lot of families it is a lot of schoolkids. It is a lot of people who may not be able to work if you look at stress and post-traumatic stress syndrome. . . . You are looking at an extremely vulnerable set of people long-term.”

In a single fire, neighbours around help a lot. But when 500 homes burn, the social fabric is burnt too.

“You have to try to replace that social fabric,” she said.
Continue reading “2003_07_july_bushfires_what is the fuss about”

The short to medium term outlook for the water supply is fairly bleak in Canberra because of the fires.

Bendora and Corin dams in the Cotter catchment are unusable because of sediment running from bushfire-affected land. They will remain unusable for at least a year until new filtration equipment is installed at Stromlo.

So there is only Googong to serve the city. Right now, Googong Dam on its own has enough water to supply Canberra for a year without any rain. But there is not enough pumping and treating capacity too get water out of Googong, filtered and sent to Canberra to keep up with summer demand.

From now to the first day of summer the rain can fill all the dams but we will still have Stage Three water restrictions – which effectively means no outdoor watering.

Alas, we have a unitary system of water supply so all water delivered to Canberra households has to be treated to drinkable level even if it is destined for gardens.
Continue reading “2003_07_july_bushfires_water future”

Canberra has a higher rate of under-insurance than the national average, according to surveys done since the January 18 fires

The fires have spurred some Australians into insuring or upgrading their insurance of their home and contents, but under-insurance and no insurance remains rife.

Twenty-five per cent of Australians who had home buildings insurance believed their insurance would not cover the full cost of rebuilding their home if it burned down. And 29 per cent of Australians with contents cover believed their policies would not cover the full cost of replacement if their home were destroyed by fire.

But Canberra has a worse rate for buildings.

Forty-four per cent of Canberra residents with home buildings cover are aware their insurance would not cover the full cost of rebuilding their home if it burned down.

It may be that the fires have made Canberrans aware of spiralling building costs, but they have not got around doing anything about it. Maybe they are waiting for their policy renewal notices.
Continue reading “2003_07_july_bushfires_underinsurance1”

The repair job by ActewAGL to Canberra’s burnt out infrastructure was little short of miraculous.

ActewAGL coped so well for several reasons.

The homework had already been done. Detailed emergency plans are constantly reviewed. Not just for fire, but other emergencies such as earthquake and explosions and the like.

It got considerable help from other utility companies that had otherwise been in competition.

It got help and co-operation from the community and the Government.

The chief executive officer of ActewAGL John Mackay said many of his staff returned from holidays and worked around the clock in 12-hour shifts. He praised their efforts and skill and the co-operation of the community, the media and competitors who lent a hand.

The damage was enormous:

About 500 houses destroyed. About 1000 damaged. Community facilities, businesses and infrastructure damaged.

Continue reading “2003_07_july_bushfires_the destruction and restoration of po”